“I can't think of any case where a defendant has wanted to plead guilty and the state has insisted on going to trial,” he said.

The state code of criminal procedure says defendants can elect to be sentenced by a judge or jury. They also can waive their right to a jury trial on guilt/innocence, but only if the prosecution and judge consent to it.

Reamey said his initial impression is that Barton faces an uphill battle to convince the 4th Court of Appeals to order Emerson to conduct a trial.

“It is true that if there is a trial, the state can insist that it be before a jury,” Reamey said. “But that does not say to me that the state has the right to have a trial if the defendant is willing to enter a plea of guilty and the court is willing to accept it.”

Barton asserted in court that Reynolds' fate legally rests in the hands of a jury.

“Because I am refusing to approve the jury waiver, he has to go before a jury. He cannot avoid trial by pleading guilty before a judge. And if he pleads guilty before the jury, the jury must sentence him,” Barton said.

Ellison said Barton overreached.

“He could have forced a jury trial on guilt (or) innocence, but he wanted to be a hog and have the jury also assess punishment,” Ellison said. “The judge followed the law.”